EFF has filed a second lawsuit over a "bogus" takedown, hoping for better results.

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Illegitimate or simply unnecessary copyright claims are, unfortunately, commonplace in the Internet era. But if there's one person who's probably not going to back down from a claim of copyright infringement, it's Larry Lessig, one of the foremost writers and thinkers on digital-age copyright. Lessig has been advocating for reforms to copyright for many years now.

If Liberation Music was thinking they'd have an easy go of it when they demanded that YouTube take down a 2010 lecture of Lessig's entitled "Open," they were mistaken. Lessig has teamed up with the Electronic Frontier Foundation to sue Liberation, claiming that its overly aggressive takedown violates the DMCA and that it should be made to pay damages.

Liberation Music owns the exclusive license to "Lisztomania" by the French band Phoenix, and snippets of that song featured prominently in Lessig's lecture. According to the complaint, Lessig showed clips of different groups of amateurs dancing to the song in Brazil, Israel, Brooklyn, Latvia, and Kenya. His point was such spontaneous outbreaks of online culture are "the latest in the time-honored 'call and response' tradition of communication."

The lecture was from 2010, but Lessig posted it in June of this year.

Lessig's lawsuit runs through the checklist of fair use, making a case for why his lecture falls under that distinction: he used a small proportion of the song, his lecture doesn't compete with the market for the song in any way, and the lecture is an entirely new creation. Phoenix wanted its song to entertain and make money; Lessig's lecture was educational, and neither he nor Creative Commons, the sponsor, made any profit.

The EFF and Lessig are hoping Liberation Music will have to pay damages under 512(f), the section of the DMCA that requires copyright owners to pay damages when they go too far in issuing a takedown. Hardly any copyright owner has ever had to pay damages under 512(f). The EFF's one lawsuit in this area has been the incredibly long-lasting Lenz v. Universal "dancing baby" lawsuit. That case, filed in 2007, is just now lumbering towards an appeal court, and EFF has seen mixed results in that case.

The foundation is hoping for a better outcome here. The fact pattern is different: Universal immediately backed down over the Lenz video, but still got slapped with an EFF lawsuit. Liberation, by contrast, threatened Lessig with a suit even after getting his counter-notice, which convinced him to keep his video offline until he was prepared to go to court.

"I have the opportunity, with the help of EFF, to challenge this particular attack," said Lessig in a press release. "I am hopeful the precedent this case will set will help others avoid such a need to fight."

The EFF and Lessig are hoping Liberation Music will have to pay damages under 512(f), the section of the DMCA that requires copyright owners to pay damages when they go too far in issuing a takedown. Hardly any copyright owner has ever had to pay damages under 512(f).

Was there a DMCA takedown notice? I thought YouTube takedowns were mostly done without using DMCA takedowns.

As a content creator who believes in (limited) copyright, I full support this action by Lessig and the EFF. Things have swung way too far the wrong way with the DMCA. As mDuo13 says, let's hope this goes some way to restoring balance and reason.

The EFF and Lessig are hoping Liberation Music will have to pay damages under 512(f), the section of the DMCA that requires copyright owners to pay damages when they go too far in issuing a takedown. Hardly any copyright owner has ever had to pay damages under 512(f).

Was there a DMCA takedown notice? I thought YouTube takedowns were mostly done without using DMCA takedowns.

Yeah, I thought they mostly used Google's own system now, rather than DMCA notices. Maybe they sent the notice directly to him rather than going through YouTube for some reason.

The EFF and Lessig are hoping Liberation Music will have to pay damages under 512(f), the section of the DMCA that requires copyright owners to pay damages when they go too far in issuing a takedown. Hardly any copyright owner has ever had to pay damages under 512(f).

Was there a DMCA takedown notice? I thought YouTube takedowns were mostly done without using DMCA takedowns.

Yeah, I thought they mostly used Google's own system now, rather than DMCA notices. Maybe they sent the notice directly to him rather than going through YouTube for some reason.

Unless Liberation Music is one of the few entities with direct access to the YouTube CMS (which'd allow them to do whatever the fuck they wanted to any video), then they would have used a DMCA takedown. And apparently they also threatened a lawsuit, so there'd still be that aspect of it.

I doubt the trial will be a victory for the people and copyright law, it'll likely be dragged out forever and end up in favor of those that continue to abuse and corrupt copyright. Hopefully I'll be shown to be wrong.

If you're going to pick someone to try and copyright troll, don't pick the world's foremost public intellectual on copyright issues. It's rather like being a street mugger and picking the 6ft 4 broad-shouldered guy with a Marine tattoo.

Good! Some real enforcement of DMCA 512(f) would go a long way towards bringing the balance of fair use and copyright online back into alignment.

Yeah right, look how long that dancing baby crap had been taking to go through the courts. If the fines for false DMCA notices were handled as expediently as the takedowns, then things would actually be fair. But, that's not the case since the DMCA was bought by lobbyists.

I miss the congress that laughed the MPAA and Jack Valente out the door when Valente had the audacity to compare the VCR to Hollywood as the Boston strangler was to the woman home alone. Thank you so much Citizens United ruling.

While I fully support Lessig on most things, he is going to fail. There is no automatic fair use rule. Fair use always has to be judged by a court. Therefore, the copyright holder is always in his right to challenge any use of their work. For this reason, he should fail.

I don't know that I'd word it quite that way, but I do at least agree that the bar is quite high for Lessig & EFF. IANAL, but it seems that they'd need a smoking gun email or the like that says Liberation knows it's fair use and decided to press ahead anyway. They are the legal copyright holder, right?.

While I fully support Lessig on most things, he is going to fail. There is no automatic fair use rule. Fair use always has to be judged by a court. Therefore, the copyright holder is always in his right to challenge any use of their work. For this reason, he should fail.

If the case was so weak that they immediately withdrew it without even going to court, then they obviously were at fault for ever issuing the threat in the first place.

I'm all for each person having their day in court, but the intention here was obviously intimidation. No one ever intended to go to court, as evidenced by their immediate retreat upon challenge. Abuse of the law like this should meet with due penalty.

If you're going to pick someone to try and copyright troll, don't pick the world's foremost public intellectual on copyright issues. It's rather like being a street mugger and picking the 6ft 4 broad-shouldered guy with a Marine tattoo.

For the REAL LIFE version of that story, Google the phrase "Do you want karate?"

While I fully support Lessig on most things, he is going to fail. There is no automatic fair use rule. Fair use always has to be judged by a court. Therefore, the copyright holder is always in his right to challenge any use of their work. For this reason, he should fail.

I don't know that I'd word it quite that way, but I do at least agree that the bar is quite high for Lessig & EFF. IANAL, but it seems that they'd need a smoking gun email or the like that says Liberation knows it's fair use and decided to press ahead anyway. They are the legal copyright holder, right?.

I'm not so sure. A DMCA notice has to be signed by someone, who is usually a lawyer who studied at university and has a good understanding of copyright law

They can't claim ignorance in what appears to be a cut and dry fair use example.

Liberation, by contrast, threatened Lessig with a suit and forced him to keep his video offline.

I sincerely hope this is enough to deny them the usual (if spurious) 'good faith' defense that shields almost all malicious DMCA notices. Even token damages would set a valuable precedent (though I'd like to see them suffer).

The astroturfers for Big Tech are bullying an independent label shocking.

How exactly is anyone bullying Liberation Music? Would that be someone challenging their blatantly false DMCA takedown and threat of a lawsuit in court? Because that's the only thing that's happened to Liberation here...

This is good and I certainly hope Lessig gets full retribution and creates a precedent, but let's not get too excited. The DMCA gave content owners the equivalent of a big caliber machine gun, so, to appease the fair use camp, they added 512(f) - a BB gun. Both sides have a gun now, so it's fair and balanced, right?Hopefully, we'll get to fire back for this once, but I would not expect the little pellet to do much damage or be very dissuasive.

While I fully support Lessig on most things, he is going to fail. There is no automatic fair use rule. Fair use always has to be judged by a court. Therefore, the copyright holder is always in his right to challenge any use of their work. For this reason, he should fail.

I don't know that I'd word it quite that way, but I do at least agree that the bar is quite high for Lessig & EFF. IANAL, but it seems that they'd need a smoking gun email or the like that says Liberation knows it's fair use and decided to press ahead anyway. They are the legal copyright holder, right?.

I'm not so sure. A DMCA notice has to be signed by someone, who is usually a lawyer who studied at university and has a good understanding of copyright law

They can't claim ignorance in what appears to be a cut and dry fair use example.

Unfortunately... yes they can, and in far more egregious abuses (such as claiming copyright on something you don't have anything to do with!). This is also why the dancing baby case has been such a mess.

If it was an automated system with no one reviewing the output, that's not going to prove a lack of good faith. Courts generally require you to show bad faith here - that is you have to prove they knew it wasn't a valid DMCA notice. Showing they had no real reason to believe it was valid isn't enough. Which means that the provision is essentially worthless and there's no penalty for sending absurd DMCA notices (see a lot of the takedown requests Google gets for example) and this law needs serious reworking.

If you're going to pick someone to try and copyright troll, don't pick the world's foremost public intellectual on copyright issues. It's rather like being a street mugger and picking the 6ft 4 broad-shouldered guy with a Marine tattoo.

Don't forget one with a history of defending against the DMCA long past the point of reason.

To extend your metaphor, it's like a mugger picking the 6'4" broad-shouldered guy with a Marine tattoo and a SgtMaj's rockers. You _know_ the guy just doesn't know how to say "uncle".

They can't claim ignorance in what appears to be a cut and dry fair use example.

They don't need to claim ignorance. 512(f) requires a knowing misrepresentation that the material is infringing; fair use is an affirmative defense. How can they be misrepresenting that the material is infringing if the other side's defense begins with "yes but?"

Lessig may well prevail on Fair Use. He'll probably get to put his lecture back up. Damages under 512(f), not so much.

They can't claim ignorance in what appears to be a cut and dry fair use example.

They don't need to claim ignorance. 512(f) requires a knowing misrepresentation that the material is infringing; fair use is an affirmative defense. How can they be misrepresenting that the material is infringing if the other side's defense begins with "yes but?"

Lessig may well prevail on Fair Use. He'll probably get to put his lecture back up. Damages under 512(f), not so much.

Probably, but I'm not so sure that can't or won't change in time. Fair use originated in case law way back in the 40s long before becoming statutory, and US fair use doctrine is still the most progressive in the world by a mile, despite the settlement of new law taking a long time. While this might not be the case that changes anything I don't think that regular and systemic take-down abuse, like patent trolling, will escape the attention of do-gooders forever.

The EFF and Lessig are hoping Liberation Music will have to pay damages under 512(f), the section of the DMCA that requires copyright owners to pay damages when they go too far in issuing a takedown. Hardly any copyright owner has ever had to pay damages under 512(f).

Was there a DMCA takedown notice? I thought YouTube takedowns were mostly done without using DMCA takedowns.

Yeah, I thought they mostly used Google's own system now, rather than DMCA notices. Maybe they sent the notice directly to him rather than going through YouTube for some reason.

If you look at "The Takedown" section (paragraph 48) of the complaint, that process is what happened. Liberation took it down via Youtube's ContentID, Lessig objected, Liberation filed a DMCA complaint, Lessig counter-noticed, and Liberation contacted Lessig to tell him they would be suing him.

"I have the opportunity, with the help of EFF, to challenge this particular attack," said Lessig in a press release. "I am hopeful the precedent this case will set will help others avoid such a need to fight."

Even if the music firm has to pay some trivial "damages", it won't stop every tom dick or harry from misusing the DMCA every way from Sunday. The penalty will be some hundreds, maybe a few thousand dollars, which for these corporations = Nothing.

If the damages were to, say, [for a public corporation] be large enough for them to miss making their numbers for the quarter...THAT would make them think twice filing a DMCA notice. I'll bet they would actually have a real person listen to the song/watch the video/read the text, then really evaluate it in the context of "Is this fair use?" and "Is this even copyright by us?" and then file the DMCA notice.

"I have the opportunity, with the help of EFF, to challenge this particular attack," said Lessig in a press release. "I am hopeful the precedent this case will set will help others avoid such a need to fight."

Even if the music firm has to pay some trivial "damages", it won't stop every tom dick or harry from misusing the DMCA every way from Sunday. The penalty will be some hundreds, maybe a few thousand dollars, which for these corporations = Nothing.

If the damages were to, say, [for a public corporation] be large enough for them to miss making their numbers for the quarter...THAT would make them think twice filing a DMCA notice. I'll bet they would actually have a real person listen to the song/watch the video/read the text, then really evaluate it in the context of "Is this fair use?" and "Is this even copyright by us?" and then file the DMCA notice.

"I have the opportunity, with the help of EFF, to challenge this particular attack," said Lessig in a press release. "I am hopeful the precedent this case will set will help others avoid such a need to fight."

Even if the music firm has to pay some trivial "damages", it won't stop every tom dick or harry from misusing the DMCA every way from Sunday. The penalty will be some hundreds, maybe a few thousand dollars, which for these corporations = Nothing.

If the damages were to, say, [for a public corporation] be large enough for them to miss making their numbers for the quarter...THAT would make them think twice filing a DMCA notice. I'll bet they would actually have a real person listen to the song/watch the video/read the text, then really evaluate it in the context of "Is this fair use?" and "Is this even copyright by us?" and then file the DMCA notice.

Good! Some real enforcement of DMCA 512(f) would go a long way towards bringing the balance of fair use and copyright online back into alignment.

Yeah right, look how long that dancing baby crap had been taking to go through the courts. If the fines for false DMCA notices were handled as expediently as the takedowns, then things would actually be fair. But, that's not the case since the DMCA was bought by lobbyists.

I miss the congress that laughed the MPAA and Jack Valente out the door when Valente had the audacity to compare the VCR to Hollywood as the Boston strangler was to the woman home alone. Thank you so much Citizens United ruling.

I thought it was a great metaphor. A whole bunch of hysteria and fear despite the actual danger to any given individual being incredibly low.

"I have the opportunity, with the help of EFF, to challenge this particular attack," said Lessig in a press release. "I am hopeful the precedent this case will set will help others avoid such a need to fight."

Even if the music firm has to pay some trivial "damages", it won't stop every tom dick or harry from misusing the DMCA every way from Sunday. The penalty will be some hundreds, maybe a few thousand dollars, which for these corporations = Nothing.

If the damages were to, say, [for a public corporation] be large enough for them to miss making their numbers for the quarter...THAT would make them think twice filing a DMCA notice. I'll bet they would actually have a real person listen to the song/watch the video/read the text, then really evaluate it in the context of "Is this fair use?" and "Is this even copyright by us?" and then file the DMCA notice.

But that would only happen in fantasyuniverse.

It needs to count as perjury. EG, it needs to give jail time to CEOs.

Jail time for something like this would be ridiculous (aren't there already enough people in jail for ridiculously trivial stuff?), but I'd agree there should certainly be a meaningful penalty. Even something as simple as a small processing fee per DMCA notice could make these large more or less unfiltered sweeps look like a bad idea really quickly.

While I fully support Lessig on most things, he is going to fail. There is no automatic fair use rule. Fair use always has to be judged by a court. Therefore, the copyright holder is always in his right to challenge any use of their work. For this reason, he should fail.

I don't know that I'd word it quite that way, but I do at least agree that the bar is quite high for Lessig & EFF. IANAL, but it seems that they'd need a smoking gun email or the like that says Liberation knows it's fair use and decided to press ahead anyway. They are the legal copyright holder, right?.

I'm not so sure. A DMCA notice has to be signed by someone, who is usually a lawyer who studied at university and has a good understanding of copyright law

They can't claim ignorance in what appears to be a cut and dry fair use example.

Unfortunately... yes they can, and in far more egregious abuses (such as claiming copyright on something you don't have anything to do with!). This is also why the dancing baby case has been such a mess.

If it was an automated system with no one reviewing the output, that's not going to prove a lack of good faith. Courts generally require you to show bad faith here - that is you have to prove they knew it wasn't a valid DMCA notice. Showing they had no real reason to believe it was valid isn't enough. Which means that the provision is essentially worthless and there's no penalty for sending absurd DMCA notices (see a lot of the takedown requests Google gets for example) and this law needs serious reworking.

This is exactly why Lessig and EFF are suing Liberation for violating 512(f). They're attempting to establish case law on what could constitute misrepresentation. The only really problematic part of this whole situation is that because Liberation isn't a US-based company, if they can successfully establish that the lawyer who drafted the DMCA notice to Lessig and then threatened suit didn't make the client (e.g. them) fully cognizant of the implications, may duck out of this on a technicality. But this would at least establish one bounding for potential misrepresentation and that will be a huge victory against DMCA trolling.

As far as Fair Use goes, there's plenty of case law that makes it incredibly clear that Lessig's use of the song would constitute Fair Use. Fair Use of entire works for educational purposes has been all the way to SCOTUS and victorious. So to say that each incident of Fair Use must be determined by a judge is overstating. Every copyright holder has the right to ask for a determination of Fair Use, but wasting the court's time is an excellent way to get fined vast sums of money. For lawyers, it's a great way to force a bar review hearing. Which is why Liberation and its representation would have been incredibly stupid to actually file suit over this and they should have known that before they even issued to YouTube takedown request.

The final thing to remember is that this is civil court. The burden of proof is much lower ("preponderance of evidence") which means that instead of having to clearly establish that Liberation was knowingly issuing false DMCA notices, EFF/Lessig only have to establish that there's a chance Liberation was knowingly issuing false DMCA notices.